State v. Treadaway , 116 Ariz. 163 ( 1977 )

HOLOHAN, Justice,

dissenting.

Although the case against the defendant was largely circumstantial, I am satisfied that the conviction is supported by substantial evidence and that there was no reversible error. I would affirm the conviction for first-degree murder and the sentence of death.

The majority reverses the case based on the admission of evidence of a prior unnatural sex act. The evidence admitted at trial shows that the defendant, approximately three years before this crime, accosted a 13-year-old boy, small for his age, who was delivering morning newspapers. The incident took place in the early morning hours while it was still dark. The defendant took the boy to a nearby yard, undressed him, and committed the acts described in the majority opinion. Under the rule announced in State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973), the test for admissibility of abnormal sex acts to show defendant’s emotional propensity for such acts is that the acts must be similar and near in time.

Instead of answering the questions posed by the admission of this evidence, the majority slips quietly over to the psychiatrist’s couch for an answer. The majority doesn’t hold that the acts are not sufficiently similar to be admissible; the majority doesn’t hold that the acts are not near in time. The majority refuses to resolve the question of admissibility without expert advice in this area “which involves complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge.”

The majority finds the decisions from other jurisdictions which support admissibility to be “summary and cursory,” but the majority leaves the law of evidence on this issue in chaos. Will the admissibility of this evidence depend upon which expert the trial judge believes? In this very case there was a potential difference between experts on the defendant’s emotional propensities. The trial judge, after hearing, did not accept the state’s expert as qualified in the field. While the ruling was probably wrong because it was too restrictive, State v. Macumber, 112 Ariz. 569, 544 P.2d 1084 (1976), it was not important to the case until today’s decision.

In my judgment the acts are sufficiently similar and néar enough in time to show the defendant’s propensity for abnormal sex acts with children. It is also noteworthy that the way the acts occurred supports the conclusion of similarity. The acts occur while the defendant is prowling around in the darkness of the early morning, occur with a male child, involve abnormal sex, and are accomplished with a certain boldness that ignores danger of discovery.

I believe that State v. McFarlin, supra, is still the law of this jurisdiction, and this case is one of those aberrations which occur from time to time with “hard cases.”

In another area the majority’s position must be questioned. The defense expert, Dr. Tuchler, wanted to testify that the defendant was not a violent person. The trial judge correctly ruled that such testimony was not admissible. If the majority suggests that such character evidence is somehow admissible because it comes from some psychiatrist, I disagree. In fact.the case cited by defendant disposes of that position. Freeman v. State, 486 P.2d 967 (Alaska 1971). Interestingly, this area of sexual deviancy which perplexes the majority is described as character evidence.

“It appears to be uniformly accepted that psychiatric evidence showing that an individual accused of sexually deviant misconduct is not a sexual psychopath should properly be regarded to be character evidence.” Freeman v. State, supra, at 972 n. 3. See also People v. Villegas, 29 Cal. App.2d 658, 85 P.2d 480 (1938).

Prior to the adoption of the new rules of evidence the proper method of proving character was confined to showing general reputation. Baumgartner v. State, 20 Ariz. 157, 178 P. 30 (1919). The ruling of the trial judge was “clearly” correct under the law in effect at the time of the trial.

I agree with the majority that the new rules of evidence will permit Dr. Tuchler at a retrial to give his opinion on a trait of the defendant’s character. On cross-examination can the state inquire of Dr. Tuchler whether he considered the sexual attack on the 13-year-old boy in forming his opinion of the peaceful nature of the defendant?

I concur in the majority’s position on the use of the polygraph. Such tests are not admissible except by stipulation. I am not convinced that either machines or operators require recognition by the court as “reliable.”

HAYS, J., concurs.